The Tillamook County Board of Commissioners held the first of two public hearings on Dec. 9 at the Tillamook County Courthouse, to discuss an appeal of the planning commission’s similar use determination and decision to approve the installation of the Jupiter Submarine Cable System. The fiber optic cable system and landing site would be on a property zoned rural residential two-acre, located within the Tierra Del Mar area north of the Pacific City/Woods unincorporated community and designated as Tax Lot 3200.
The subject property is accessed via Sandlake Road, a county road, and is located within the Tierra Del Mar area north of the Pacific City/Woods Unincorporated Community. The applicant and property owner are Edge Cable Holdings.
Joel Stevens, lawyer for Tillamook County, said there were four appeals: Lynnae Ruttledge, Edmund Ruttledge, Oregon Coast Alliance and Michael Kittell.
Sarah Absher, director of community development, said a decision and the order by the BOCC must be signed before Jan. 19. She also said that it is required that the BOCC hold two hearings on this project.
Arguments state that the cable system is not a public utility, and therefore, not similar use.
Another argument was that since it is not regulated like regular utilities, it is not a public utility, and that drilling should not be allowed on a residential lot. The community has been very vocal in their opposition. There was a meeting with the public, Rep. David Gomberg (D-Otis) and Facebook in August.
Another argument asked who would be there to ensure there would be no damage to private property. Many arguments said that the tie vote, made at the November planning commission meeting, should have resulted in a failed conditional use.
“The planning commission felt that [similar use determination] could be looked at multiple ways,” Absher said. “There were some that felt that because it didn’t meet the definition of a public utility, that it could not be considered to be similar.”
The planning commission voted in majority of similar use by a vote of 5-2 and condition use.
Absher said the Board will have to decide whether the planning commission made a correct similar use determination or not.
A geotechnical report was required of the applicant to look at potential impacts. There had been concerns from the public of the report’s adequacy. The applicant would be required to get a permit to drill. Noise has also been a significant concern. The construction part of the project is the most intrusive part.
“There is conversation in the appeal that the applicant has not been a community partner as what was promised,” Absher said.
Commissioner Mary Faith Bell asked Absher to explain the process after the tie vote. Absher said there was no guidance in the bylaws about the outcome after a tie vote.
“How is development allowed on a primary dune?” Bell asked.
Absher said that when the comprehension plan was developed, it was allowed because development was already there. Absher went on to say that the project has to be consistent with the goals and policies of the comprehension plan but that there is nothing that says it has to be met.
Bell asked if this is the only fiber optic cable that would come in. Absher said that no future cable installation would take place. Any future cable installation proposals would have to go through the same process.
Lynnae Ruttledge, a citizen of Tierra Del Mar, was the first appellant to speak. She and her husband have been homeowners there since 1992.
“It’s really an honor to be here to provide testimony,” Lynnae said. “I actually represent a group of nine Tierra Del Mar residents who all have standing. They’re community supporters.”
She said there are issues that need to be heard and that the project brings unwanted and unneeded attention. This proposed project is ill-conceived.
Lynnae said there is no benefit to Tierra Del Mar from this project but there are environment consequences. She believes the conditional use criteria are not met. Tierra Del Mar, like Tillamook, is a community. She said the community was not included in discussions of the project.
Lynnae said good neighbors are people, not a vault. She said the project cannot be consistent with Goal 1 of the comprehension plan. She is concerned about construction. Residential construction does not require a frack out plan, yet this project does. The Department of Environment Quality requires an adequate water site, as well as silt fencing. The applicant has proposed to truck in their own water, Absher said.
Lynnae asked where the workers are going to park and pointed out that all of the equipment will have to be transported to the site. She also said the garbage truck is usually the heaviest truck that goes on Sandlake Road.
Bell asked how Lynnae expects safety to be compromised. Lynnae responded and said vacant lots could be applied for future cable landings. This is viewed as a safety risk. The workers have to wear masks during construction. The people of Tierra Del Mar don’t have cellphone service. If something happens on the lot, they cannot do anything.
Bell asked Lynnae to talk more about the lot being densely developed. Lynnae said the construction is being done in an area where people will see, hear and feel it. There won’t be the same impacts after construction. There will occasionally be people doing maintenance work.
Lynnae said there is a risk of damage to the septic system or foundations of adjacent houses. She said houses and its foundation settle after this kind of construction and you won’t know until months after construction is over.
The property is also susceptible to flooding. Lynnae said there will be substantive and negative impacts if the cable system is installed. There is no way to forecast impacts. She believes this project would alter the character of Tierra Del Mar and would set the stage for future cable installation projects.
Chair David Yamamoto asked if there is any expectation for revegetation. Lynnae said this is a private company asking for state and local permits to cut vegetation. Yamamoto said the silt fencing needs to be addressed. He also said the safety of the residents of Tierra Del Mar could be benefited by the increased technology.
“Tillamook County could certainly be benefited by that,” Yamamoto said. “The state of Oregon certainly could.”
Edmund Ruttledge, Lynnae’s husband, was the next appellant to speak. He had a four-decade career working with local government and spent a lot of time working with boards in decision-making. He said the procedure during this project was disturbing. A resolution was not achieved by the planning commission’s decision. It needs to be thought out with care.
Edmund hopes for more detailed procedures in the future. He said a tie vote is not a majority and the planning commission didn’t know what do. A motion to reconvene was not made.
“The planning commission is probably one of the most difficult commissions to be a part of in the county,” Yamamoto said. “They make these types of decisions on a regular basis and they are not easy decisions.”
Edmund agreed that the planning commission has a difficult job. He said there is going to be winners and losers, but both parties should feel comfortable with the result.
The Oregon Coast Alliance spoke next. Jeff Bryner said the Tierra Del Mar community is unanimously against the project. Bryner said Facebook has made claims that it should be viewed as a public utility. Open Platform Communications requires public utilities to be regulated; Facebook is not.
Bryner said issuing this conditional use permit is not logical and the existing permit calls out no safety regulations. He said the project does not meet the requirement for conditional use.
Michael Kittell was the fourth appellant to speak. He represents a number of people from Tierra Del Mar. He said there are a number of citizens from communities beyond Tierra Del Mar that have concern. He said ‘public’ in the context of Goal 11, means the public, and in this case, the public of Tierra Del Mar.
Tillamook County is quickly running out of cable routes, Yamamoto said.
“I for one would like to bring some of those cables into Tillamook County, but we are running very short of that,” Yamamoto said.
In Facebook’s closing rebuttal argument, Phil Grillo of Davis Wright Tremaine, wrote that Tillamook County has the highest ratio of fixed internet access connections in the state. This high ratio of fixed internet access connections has significant public policy and public health, safety and welfare advantages that are directly attributable to the County’s progressive broadband infrastructure polices, Grill wrote.
Grillo wrote that opponents have mischaracterized the proposed use as an industrial or commercial horizontal directional drilling project, which it is not. He argued that for land use purposes, the county does not define land uses based on the type of construction methods involved. The opponents have attempted to shift focus onto who owns, operates and uses the proposed use, stating that the project benefits only Facebook and its users.
In regard to the noise issue, Grillo said Facebook has provided a professional noise mitigation study showing that temporary construction noise on the site does not violate any applicable noise standards, and that the temporary construction noise it does produce will be significantly lower than the noise from most construction sites. Facebook is willing to consider installing a taller sound barrier along portions of the southern part of the site, to further reduce temporary construction noise.
Grillo wrote that there is substantial evidence in the record that after the proposed 35-day construction period, there will be no impacts from the proposed use that will alter the character of the surrounding area that limits, impairs or prevents the use of surrounding of surrounding properties for the permitted uses listed in the underlying zone.
The continuation of the hearing is scheduled for 1:30 p.m. Wednesday, Jan. 8, in the Board of County Commissioners Meeting Rooms A & B of the Tillamook County Courthouse.